Hamburg employee admits $150,000 theft of recreation fees

Hamburg employee admits $150,000 theft of recreation fees

Source: Office of the State Comptroller

On October 24, 2018 , State Comptroller Thomas P. DiNapoli and Erie County District Attorney John J. Flynn announced that a Village of Hamburg recreation attendant admitted stealing more than $150,000 by skimming village fees and altering public records from 2011 to 2017.

Joanne Erickson, stole cash payments that were meant to fund an after-school program, a children’s summer program and recreation hall rental fees. She allegedly altered cash reports and submitted them to the village and the Recreation Center supervisor. The Comptroller’s office conducted an investigation and audit, discovered the theft and brought the matter to Flynn’s office as part of their ongoing partnership. Erickson was terminated from her $35,000-a-year post by the village in April 2018.

"Little by little, Ms. Erickson systematically defrauded the Hamburg taxpayers of $150,000,” DiNapoli said. “Thanks to the hard work of my office in partnership with District Attorney Flynn, Ms. Erickson has been held accountable.”

“This defendant not only stole from taxpayers, but stole money intended to support programs for children in the Village of Hamburg. I want to thank our partners in the State Comptroller’s Office for conducting this audit, which allowed us to prosecute this individual,” Flynn said.

Erickson, a 14-year village employee, pleaded guilty to grand larceny, false filing and official misconduct. She is due back in court on Jan. 9 for sentencing.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

Garcia v DiNapoli, 2018 NY Slip Op 06602, Appellate Division, Third Department

A county correction officer [Officer] filed for Retirement and Social Security Law §607-c performance of duty disability retirement benefits claiming he had suffered a  permanently disability as a result of his tripping and falling while descending stairs within the facility in the course of his preparing to move inmates to another location.

Officer's application was denied by the Retirement System on the ground that his alleged disability "was not the result of an act of any inmate" and ultimately the State Comptroller accepted the findings and recommendation of the hearing officer. Officer appealed the Comptroller's determination.

The Appellate Division noted that Officer was [1] required to establish that the alleged incapacity was "the natural and proximate result of any act of any inmate" and [2] had to demonstrate that Officer's claimed injuries were caused by direct interaction with an inmate and were caused by some affirmative act on the part of the inmate." Further, noted the court, the action by an inmate need not to be intentionally directed at the correction officer nor does need to be volitional or disobedient in a manner that proximately causes the officer's injury, but must be more than "a benign chore routinely performed in penal institutions by inmates."  

Officer testified that he daily performs a recreation movement and on the day of the incident he was performing a routine recreation movement in accordance with regular procedures when he heard footsteps behind him, turned around to look, and "saw an inmate right on [his] back" running down the stairs about two steps behind him." Officer then stated the "[u]pon unexpectedly seeing the inmate, [he] became 'scared,' missed a step and grabbed a railing with his arm but continued to fall to the ground, resulting in his injuries."

Officer testified that, although the inmate did not make physical contact with him until assisting him off the ground after he fell, "the inmate should not have been on the stairs at that time," as Officer had not yet given the command to the inmates to descend the stairs. Officer further explained that this incident had never happened before and that "inmates are always required to wait for his command before descending the stairs and entering the recreation yard."

The Appellate Division said that under circumstances it found that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's 'disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so.'"

Under these circumstances the court decided that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so."

While "losing one's footing — without more — does not constitute an affirmative act," in this instance the Appellate Division concluded that Officer's misstep and fall flowed directly, naturally and proximately from the inmate's act of being out of place without permission and startling Officer by running down the stairs.

The Appellate Division remitted the matter to the Retirement System for further proceedings on the issue of the permanency of Officer's alleged disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06602.htm

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

Meyer v City of Long Beach, 2018 NY Slip Op 06526, Appellate Division, Second Department

Certain retired police officers [Plaintiffs] sought to recover damages resulting from an alleged breach of the terms and conditions set out in a collective bargaining agreement [CBA] established pursuant to Article 14 of the Civil Service Law [the Taylor Law] from their former employer, the City of Long Beach [City]. Supreme Court denied the City's motion to dismiss the Plaintiffs' petition and the City appealed the Supreme Court's ruling. The Appellate Division affirmed the lower court's decision, with costs.

The facts as reported in the Appellate Division's decision are as follows:

Plaintiffs were members of the Long Beach Patrolmen's Benevolent Associations [PBA], when the relevant CBA between the City  and the PBA expired. Efforts to negotiate a successor CBA failed and ultimately an arbitration award resulting from "compulsory interest arbitration," which allegedly had the statutory effect of becoming the successor CBA to the expired CBA for those members covered by the award, was issued.

The Plaintiffs here, however, had retired prior to the issuance of the arbitration award and although Plaintiffs claimed that the arbitration award applied to them, the City contends that it does not and refused to give them certain compensation mandated by the award.

The City argued that:

[1] the doctrine of collateral estoppel bars Plaintiffs from bringing this action, citing the decision in an improper practice charge filed by the Commanding Officers Association of Long Beach, New York, Inc. [COA] against the City with the New York State Public Employment Relations Board [PERB]. In that action  PERB determined that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award; and

[2] Plaintiffs' failed to pursue the grievance procedure set out in the CBA established by the award bars their lawsuit seeking to recover damages for the alleged breach of contract.

With respect to the City's reliance on the doctrine of collateral estoppel, the Appellate Division said that the issue raised in Plaintiffs' action is not identical to the issue litigated in an improper practice charge filed by COA against the City before PERB and PERB's determination that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award did not determine whether the benefits set forth in the arbitration award applied to the Plaintiffs, who were never members of the COA. Thus, said the court, doctrine of collateral estoppel is inapplicable to that issue.

As to the City's claim that Plaintiffs' failed  to pursue the grievance procedure set out in the successor CBA, the Appellate Division said that this failure "does not warrant dismissal of the cause of action to recover damages for breach of contract" as "the CBA limits invocation of the grievance procedure outlined therein to 'bargaining unit member[s].'" The court explained that as retired employees of the City, Plaintiffs were not members of the collective bargaining unit when they became aggrieved and thus they could not have pursued the grievance procedure set out in the CBA that the City claimed was available to them.

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06526.htm